Friday, January 20, 2006

BALTIMORE — A Circuit Court judge yesterday ruled that Maryland’s 33-year-old ban on same-sex “marriage” is unconstitutional.

In issuing her ruling, Judge M. Brooke Murdock imposed a stay on it pending an anticipated appeal — and preventing a rush to the altar by homosexual couples.

The ban had been challenged by 19 homosexual men and women who filed suit against court clerks in Prince George’s, Dorchester, St. Mary’s and Washington counties and Baltimore. The clerks had denied the homosexuals applications for marriage licenses, citing the 1973 law.

“After much study and serious reflection, this court holds that Maryland’s statutory prohibition against same-sex marriage cannot withstand this constitutional challenge,” Judge Murdock said in her 22-page ruling.

The law defining marriage as a union of a man and a woman violates the state constitution’s Equal Rights Amendment, which guarantees “equality of rights under the law shall not be abridged or denied because of sex,” the judge said.

The Maryland Attorney General’s Office yesterday appealed the decision to the Court of Special Appeals. The case appears destined for the Court of Appeals, the state’s highest court, and possibly the U.S. Supreme Court.

“The most important thing is that she stayed her own decision,” said Assistant Attorney General Robert Zarnock, who argued the case for the state. “Today is like yesterday, as far as the law is concerned.”

He vowed to “do a better job” at the appellate level.

The state’s position is that marriage is not a fundamental right but a privilege and that the 1973 law does not discriminate based on sex because both men and women are prohibited from entering into same-sex “marriage.”

In addition to Maryland, homosexuals have filed “freedom to marry” suits in California, Connecticut, Iowa, New Jersey, New York and Washington state.

Lower-court judges in California, Washington and New York City have ruled their states’ marriage laws unconstitutional. Judges in New Jersey and upstate New York have upheld the marriage laws. Connecticut and Iowa are awaiting their courts’ first rulings on marriage laws.

American Civil Liberties Union attorney Ken Choe, who argued the case before Judge Murdock, said he was pleased by her ruling and is optimistic the appeals courts will “understand the plight of our clients.”

Mr. Choe said Maryland’s high courts do not have a reputation for leaning severely to the left or right, and the appeal will not be won easily.

“Is it a slam dunk?” he said. “No.”

But University of Baltimore law professor Byron Warnken says Maryland’s Court of Appeals remains one of the most liberal top state courts in the country, despite becoming slightly more conservative since 1999.

The Maryland Court of Appeals consists of one appointee by Gov. Robert L. Ehrlich Jr., a Republican; five by former Gov. Parris N. Glendening, a Democrat; and one by former Gov. William Donald Schaefer, a Democrat.

Mr. Ehrlich appointed Judge Clayton Greene Jr. in 2004. Mr. Glendening appointed Chief Judge Robert M. Bell in 1996 and Judges Dale R. Cathell in 1998, Alan M. Wilner in 1996, Lynne A. Battaglia in 2001 and Glen T. Harrell Jr. in 1999. Mr. Schaefer appointed Judge Irma S. Raker in 1994.

Judge Murdock’s ruling has fueled a drive by conservative state lawmakers to pass a constitutional amendment that would ban homosexual “marriage.”

Democratic leaders had cited the 1973 law in defending their opposition to the amendment, which would have to be ratified by voters.

“It is a sad day for Maryland, and I can assure you there will be legislative consequences,” said Delegate Don Dwyer Jr., an Anne Arundel Republican leading the constitutional amendment effort.

“The majority party has been steadfast in blocking my every attempt to get a vote on a constitutional amendment,” he said. “They don’t want their members spotlighted on voting against marriage.

Democratic leaders also may resist putting a marriage amendment on the ballot this election year because it could energize conservative voters and help Republican candidates, including Mr. Ehrlich in his re-election bid and Lt. Gov. Michael S. Steele in his run for the U.S. Senate.

Judge Murdock, 56, was appointed to the Baltimore Circuit Court by Mr. Glendening in 1997. She was elected to a full, 15-year term in 1998.

A Baltimore native, Judge Murdock received her bachelor’s degree from the University of Delaware in 1972 and her law degree from the University of Baltimore School of Law in 1977.

Before becoming a judge, she was a founding partner of the Ferguson, Schetelich, Heffernan & Murdock law firm, which specializes in business and government issues, such as transportation and real estate.

Judge Murdock also served as a federal public defender from 1987 to 1991 and as an investigator for the U.S. International Trade Commission from 1980 to 1982. She is a member of the Women’s Bar Association, the National Association of Women Judges and the Women’s Law Center.

• Cheryl Wetzstein contributed to this article, which is based in part on wire service reports.

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